(Dec 23, 2013) On November 5, 2013, the Korean government filed a claim with the country's Constitutional Court to dissolve the Unified Progressive Party (UPP). At the same time, the government applied for a court injunction to suspend activities of the UPP during the trial. This case is unprecedented in the constitutional history of Korea. (Press Release, Constitutional Court, Jungdang Haesan Simpan Chunggu-e Daehan Jeopsu Hyunhwang [Current Status of the Application for the Dissolution of a Political Party] (Nov. 5, 2013).)

The Case

The Minister of Justice requested a trial to adjudicate dissolution of the UPP and removal from the National Assembly of UPP members, on the grounds that the objective of the UPP, including its platform, is based on North Korea's socialism, which is against South Korea's fundamental democratic order. The Ministry demanded an injunction for suspension of the activities of the UPP. The claimant stated that it is not enough to punish individual UPP MPs for infringement of the National Security Law. (Press Release, Ministry of Justice, Tonghap Jinbo Dang Jungdang Haesan Simpan Chunggu [Claim on Dissolution of UPP] (Nov. 5, 2013).)

On November 28, 2013, the UPP submitted its response to the Constitutional Court. The Constitutional Court issued an order for preparation (an order for parties to prepare a short summary of their claim and response, any additional evidence, and opinions and comments on the evidence submitted by the other party) to both the claimant and the defendant and designated December 10 as the date of the preparatory proceeding for the pleading. (Lee Sung Jin, Hunjae, Chut Jungdang Haesan Simpan Sagun' Junbee Myungryung Naeryeo [Constitutional Court Issued a Preparation Order for the First Dissolution Case],THE LAW JOURNAL (Dec. 11, 2013).)

The Secretary General of the Constitutional Court testified before the Legislation and Judiciary Committee of the National Assembly (Korea's parliament) on behalf of the Constitutional Court on December 5. He stated that, considering the gravity of the matter and the tremendous impact on the people, this case must be reviewed with greater prudence. (Kang Gun Taek, Hunjae, Jinbo Dang Haesan Simpan Gyuljung Sigan Gullylsudo [It May Take a Longer Time to Make a Final Decision on the Claim of Dissolution of the UPP], YONHAP NEWS (Dec. 5, 2013).)

Legislative History & Interpretation

The Constitution of the Republic of Korea states, "[i]f the purposes or activities of a political party are contrary to the fundamental democratic order, the Government may bring an action against it in the Constitutional Court for its dissolution, and the political party shall be dissolved in accordance with the decision of the Constitutional Court." (The Constitution of the Republic of Korea (as last amended on Oct. 29, 1987), art 8 ¶ 4 Constitutional Court's website.)

This provision was introduced in the third amendment of the Constitution in 1960, along with other provisions concerning political parties. (CONSTITUTIONAL COURT, Trial for the Dissolution of a Political Party, COMPENDIUM OF PRACTICE OF CONSTITUTIONAL COURT [in Korean] 365-373 (3d ed. 2008).) In 1958, a minority political party was dissolved by an administrative measure, and a political party was treated as if it were the same as a non-political association under the Constitution. This event directly led to an amendment to introduce protection and special dissolution procedures for political parties under the Constitution. (CONSTITUTIONAL COURT, RESEARCH ON DISSOLUTION OF POLITICAL PARTIES UNDER CONSTITUTIONAL LAW [in Korean] 24 (2004).)

There are therefore two main purposes of the special dissolution procedure: to protect liberal democracy and the Constitution from those who deny the value of the Constitution, and to give better protection to political parties than is extended to non-political associations by providing a special procedure for dissolution and making it impossible to dissolve a party without a decision of the Constitutional Court. (COMPENDIUM OF PRACTICE OF CONSTITUTIONAL COURT, supra, at 365.)

The grounds for calling for the dissolution of a political party are that its purpose or its activities are contrary to "fundamental democratic order." (Constitution, art. 8 ¶ 4) According to Korean constitutional law experts, "fundamental democratic order" should be interpreted, they posit, in line with the interpretation of "liberal democratic order'" in the Preamble of the Constitution and in line with the idea of democracy as an ideological basis for achieving reunification of a divided nation. (RESEARCH ON DISSOLUTION OF POLITICAL PARTIES UNDER CONSTITUTIONAL LAW, supra, at 135.)

The Constitutional Court stated in a case related to the National Security Act that "the Constitution considers protection of the liberal democratic order as the greatest virtue" and listed examples of liberal democratic order: respecting fundamental human rights, having a division of powers, having a parliamentary system and a multiparty system, holding elections, having an economic order based on private property and a market economy, and keeping judicial power independent. (Hunjae 1990, 4.2. 89 Hunga 113.) As the dissolution procedure limits the freedom to establish a political party and the right to participate in political decision-making, "fundamental democratic order" should be interpreted in a narrow sense. (RESEARCH ON DISSOLUTION OF POLITICAL PARTIES UNDER CONSTITUTIONAL LAW, supra, at 19).

Procedure

The government may bring an action against a political party upon the State Council's decision. (Constitution, art. 8 ¶ 4 & art. 89, item 14; Constitutional Court Act (1988, as last amended Apr. 5, 2011), art. 55, Constitutional Court website.) The Minister of Justice represents the government in such actions. (Constitutional Court Act, art. 25 ¶ 1.) The Constitutional Court may make an ex officio decision or decide upon a motion for an injunction to suspend the activities of a defendant political party until the final decision is issued. (Id. art. 57.)

The Constitutional Court has nine Justices (Constitution, art. 111 ¶ 2), and the full bench will review a political party dissolution case, with seven or more Justices in attendance (seven out of nine Justices is a quorum for review). (Constitutional Court Act, art. 23 ¶ 2.) A decision on the dissolution of a political party requires the concurrence of six or more Justices. (Constitution, art. 113 ¶ 1.) Due to this high requirement, it is very difficult to dissolve a political party.

The adjudication will be conducted through oral arguments. (Constitutional Court Act, art. 30 ¶ 1), and the oral arguments and pronouncement will be open to the public. Any review undertaken without oral arguments and all deliberations will not be open to the public. (Id. art. 34 ¶ 1.) However, the Constitutional Court may decide not to open the oral arguments to the public if there is concern that national security, peace and order, or good custom (a legal term which is similar to "mores maiorum" in Roman law) might be in danger. (Id. art. 34 ¶ 2; Court Organization Act [in Korean] (1949, as last amended Dec.11, 2012), art. 57 ¶ 1, National Legislation Information Center Website.) There has been no announcement as yet that argument will be closed. The Constitutional Court will pronounce its final decision within 180 days from the date of receipt of the request for dissolution. (Constitutional Court Act, art. 38.)

Consequences

When a decision ordering the dissolution of a political party is pronounced, the political party will be dissolved. (Constitutional Court Act, art. 59.) The dissolved party's property will revert to the National Treasury. (The Political Parties Act [in Korean] (1962, as amended Aug. 13, 2013), art. 48 ¶ 2, National Legislation Information Center Website.) Any alternative political party with goals similar to those of the dissolved party will be prohibited from establishment (id. art. 40), and the party's name will also be banned from use. (Id. art. 41 ¶ 2.)

There is no provision, either in the Constitution or in other laws, establishing the status of MPs of a dissolved political party. Korean constitutional law scholars Huh Young and Kwon Young Sung have stated that in light of the purpose of the dissolution of a political party under the Constitution, MPs of the dissolved party should be expelled from the National Assembly. On the other hand, Kim Chul Soo, Professor Emeritus of Seoul National University, states that there must be a separate action taken by the National Assembly after it receives the notice of dissolution of a political party from the Constitutional Court. (RESEARCH ON DISSOLUTION OF POLITICAL PARTIES UNDER CONSTITUTIONAL LAW, supra, at 265.)

Prepared by Sojin Park, Intern, under the supervision of Sayuri Umeda, Foreign Law Specialist.

The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from the Global Legal Information Network, official national legal publications, and reliable press sources. You can find previous news by searching the GLM.